Amicus Brief — Utah Power & Light Co. v. U.S.E.P.A.

IN THE

Supreme Court of the United States

Ocroser Term, 1976

No. 76-619

Uran Power & Licut CoMPANY, ET AL.,

Petitioners,

v.

Untrep States ENVIRONMENTAL PROTECTION AGENCY,

ET AL., Respondents.

No. 76-620

Western ENERGY SUPPLY AND TRANSMISSION AssocI-

ATES, ET AL., Petitioners,

v.

U xn States ENVIRONMENTAL PROTECTION AGENCY,

ET AL., Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE STATE OF UTAH AS AMICUS CURIAE IN

SUPPORT OF PETITIONS FOR WRITS OF CERTIORARI

Rozert B. Hansen,

Attorney General,

Wu C. Guia,

Assistant A: orney General.

The State of Utah

Capitol Building

Room 236

January 1977 Salt Lake City, Utah 84114

FP of Breom 8. Anancs Paxrrine, Inc, Wasurweron, D. C.

IN THE

Supreme Court of the United States

Ocroper TERM, 1976

No. 76-619

Uran Power & Lian’ CoMPANY, Fr AL.,

Petitioners,

V.

Unirep States ENVIRONMENTAL PROTECTION AGENCY,

er AL., Respondents.

No. 76-620

WesTERN ENERGY SupPLY AND TRANSMISSION AssoctI-

ATES, ET AL., Petitioners,

V.

Unrrep States ENVIRONMENTAL PROTECTION AGENCY,

eT AL., Respondents.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE STATE OF UTAH AS AMICUS CURIAE IN

SUPPORT OF PETITIONS FOR WRITS OF CERTIORARI

The State of Utah, appearing by its undersigned

Attorney General, respectfully tenders this brief as

amicus curiae for the consideration of the Court in

support of the petitions for writs of certiorari in Nos.

2

76-619 and 76-620. The State supports the position

presented therein and urges this Court to grant the

petitions for writs of certiorari.

THE INTEREST OF THE STATE OF UTAH

The State of Utah is directly affected by the deci-

sion of the court below. With the exceptions of Alaska

and Nevada, federal land ownership is more extensive

in the State of Utah than in any other state. Under

the prevention of the significant deterioration regula-

tions, the State of Utah is deprived of its primary re-

sponsibility under the Clean Air Act to control ambient

air quality within its boundaries. Specifically, 40

(F. R. § 52.21(e)(3)(iv) (1976) of the regulations

has the effect of delegating control of all lands within

the State to federal land managers. Thus, Utah’s

ability to control its land use and economic develop-

ment is substantially impaired, if not abrogated. For

this reason, the Court should grant the petitions for

writs of certiorari to determine the validity of § 52.21

(ec) (3) (iv) of the regulations.

The court below declined to decide the validity of

§ 52.210 ) (3) (iv). If allowed to stand, the regulation

would seriously interfere with the State’s execution of

the air quality management responsibilities vested in

it by Congress. Moreover, the decision poses a threat

to the economic development of substantial areas within

the State of Utah. The State has a clear interest in

seeking reversal of the decision below.

The Clean Air Act from its inception in 1955 (69

Stat. 322-323), has preserved the right of each state to

control its air quality. Train v. Natural Resources

3

Def. Council, 421 U.S. 60, 63-64 (1975). Section 52.21

(e) (3) (iv) of the significant deterioration regulations

permits federal land managers to redesignate federal

lands to a more restrictive classification independent

of state control. This has the operative effect of de-

priving the State of Utah of its powers and responsi-

bilities under the Clean Air Act. Thus, § 52.21(¢)(3)

(iv) is, in effect, an amendment to the Clean Air Act,

rather than a regulation pursuant to the Act.“

The lower court declined to determine the validity

of § 52.21(¢) (3) (iv) holding it not yet ripe for review.

Under the explicit provisions of the Clean Air Act the

issue of the validity of §52.21(¢)(3)(iv) is ripe fer

review. Moreover, § 52.21 (¢)(3)(iv) has a real and

immediate impact on Utah’s ability to regulate its

air quality.

A. The States Have the Primary Responsibility for Assuring

Air Quality Within Their Geographic Areas.

Throughout the history of the Clean Air Act, Con-

gress has preserved the basic principle ‘‘that the pre-

vention and control of air pollution at its source is the

primary responsibility of States and local govern-

ments.“ Section 101(a)(3), 42.U.S8.C. 8 1857(a) (3);

Train v. Natural Resources Def. Council, 421 U.S. 60,

64 (1975). Section 107(a), 42 U.S.C. § 1857c-2(a),

provides that [e lach State shall have the primary

responsibility for assuring air quality within the entire

geographie area comprising such State This

Court recently reaffirmed the principle of State respon-

The 94th Congress had before it a bill to amend the Clean Air

Act that would have siven federal land managers authority similar

to that provided in the regulations, S. 3219, 94th Cong., 2d Sess.

(1976). The bill failed to pass into law.

4

sibility in Hancock v. Train, — U.S. —, 96 S. Ot. 2006

(1976) and Union Electric Co. v. E. P. A., — US. —,

96 S.Ct. 2518 (1976).

Senator Muskie, a major proponent of the 1970

amendments to the Clean Air Act, presented to the

Senate the Conference Committee’s report amending

the Act and discussed the importance of State control:

I have been very much interested in preserving

‘local option’ features so that State and local

authorities would be able to pursue options among

a broad array, secking a possible way of controlling

or preventing air pollution that is most responsive

to the nature of their air pollution problem and

most responsive to their needs. In my judgment,

the bill will give State and local authorities suffi-

cient latitude in selecting ways to prevent and

control air pollution. Senate Committee on Public

Works, 93d Cong., 2d Sess., A Legislative History

of the Clean Air Amendments of 1970, 137 (Comm.

Print 1974) (emphasis supplied).

Section 52.2106) (3) (iv) deprives the State of Utah

from controlling and preventing air pollution contrary

to explicit provisions of the Act, decisions of this Court,

and Congressional intent. *

B. The Regulations Have the Operative Effect of Divesting

the State of Utah of Control Over Its Ambient Air Quality.

Section 52.21(¢)(3)(iv) grants federal land mana-

gers the authority to independently reclassify federal

lands to the more restrictive Class I designation.

Federal lands comprise 66 percent of the total lands

in the State of Utah.“ Moreover, the checkerboard

? Bureau of Land Management, Public Land Statistics 10 (1975).

5

ownership pattern of the federal lands in Utah is such

that there is no private or State land that is farther

than twenty miles from federal lands. This enables

federal land managers to be able to control all of the

lands within the State. This result was acknowledged

by the Administrator in his diseussion of the regula-

tions:

[Bleeause of the small air quality increments

specified for Class I areas, these levels can be

violated by a source located many miles inside

an adjacent Class Il or III area. For example,

a power plant which just meets the Class Il in-

crement for SOz could under some conditions vio-

late the Class I increment for 80. 60 or more miles

away. Under the regulations promulgated below,

a source could not be — to construct if it

would violate an air quality increment either in the

area where the source is to be located or in any

neighboring area in the State. Therefore, wher-

ever a Class I area adjoins a Class IT or IIT area,

the potential growth restrictions ... extends well

beyond the Class I boundaries into adjacent areas

... [It should be clear that the Class II or III

increment could only be fully utilized toward the

center of the area and that at the periphery,

allowable deterieration will be dictated by the

adjoining Class I area rather than the Class II

or III inerement. 39 Fed. Reg. 42512 (Dee. 5,

1974) (emphasis supplied) (App. B. 66a-67a).*

Federal land managers can thus exercise primary

control over Utah lands contrary to the history of the

Clean Air Act, the Act itself, and decisions of this

* Reference is to the appendix in Montana Power Company v.

United States Environmental Protection Agency, No. 76-529, a

related petition for a writ of certiorari in this proceeding.

6

Court. The State of Utah, at best, is left with only

secondary responsibility for managing the quality of

ambient air within its borders.

C. Section 52.21(c)(3)(iv) of the Regulations Is Ripe for Judicial

Review Under Section 307(b)(1) of the Clean Air Act.

The lower court declined to determine the validity

of §52.21(¢)(3)(iv) deciding that the issue was not

yet ripe for review. In reaching this conclusion, the

lower court relied upon Toilet Goods Ass’n v. Gardner,

387 U.S. 158 (1967), a case involving judicial review

under the Administrative Procedure Act, 5 U.S.C.

§ 701 et seq. Although the State believes that the issue

is ripe for review even under the principles laid down

in Toilet Goods, supra, judicial review in this proceed-

ing is governed by 5 307 (h) (1), 42 U.S.C. § 1857h-5

(h)(1), of the Clean Air Act. Accordingly, under

§ 307(b) (1), the lower court should have determined

the validity of § 52.2106) (3) (iv) of the regulations.

Section 307(b)(1) provides that,

A petition for review of the Administrator’s action

in... promulgating any implementation plan

under section 110 of this title... may be filed only

in the United States Court of Appeals for the

appropriate cirenit. Any such petition shall be

filed within 30 days from the date of such promul-

gation, . .. or after such date if such petition is

based solely on grounds arising after such 30th

day. (emphasis supplied).

The regulations were promulgated pursuant to § 110

(), 42 U.S.C. § 1857e-5(¢) (App. B. 74a) and have

heen incorporated by reference into the State of Utah’s

§ 110 implementation plan, 40 C. F. R. §52.2346 (1976).

7

As § 307 (b) (1) is the exclusive jurisdictional basis to

review the promulgation of any state implementation

plan, Oljato Chapter of Navajo Tribe v. Train, 515

F. 2d 654 (D.C. Cir. 1975); City of Highland Park v.

Train, 519 F.2d 681 (7th Cir. 1975), cert. denied, —

U.S. —, 96 S.Ct. 1141 (1976); Plan for Arcadia,

Inc. v. Anita Associates, 501 F.2d 390 (9th Cir. 1974),

cert. denied, 419 U.S. 1034 (1974) ; Getty Oil Company

(Eastern Operations) v. Ruckelshaus, 467 F.2d 349

(3d Cir. 1972), cert. denied, 409 U.S. 1125 (1973), the

lower court was required to determine the validity of

§ 52.21(¢) (3) (iv) of the regulations.

The Act explicitly directs that any petition to review

the promulgation of a state implementation plan is to

be filed within 30 days of the promulgation. Failure

to file within 30 days precludes any subsequent chal-

lenge to the implementation plan unless the petition

is ‘based solely on grounds arising after such 30th

day.. Union Electrie Co. v. F. P. A., — US. —.

—, 96 S.Ct. 2518, 2523 (1976).

The issue of the regulation’s validity is purely legal ;

further delay in resolving the issue is not in the public

interest. To the controry, the regulation has an im-

mediate impact on Utah’s authority and ability to

control its air quality. Section 52.2106) (3) (iv) funda-

mentally alters the federal-state relationship so care-

fully written into the Clean Air Act. The matter is

ripe for review, and should be resolved to remove the

cloud over Utah’s primary responsibilities under the

Clean Air Act, so that the State may effectively pursue

its sovereign rights and duties as contemplated by

Congress and as recognized by this Court.

8

CONCLUSION .

For the foregoing reasons, the State of Utah as

amicus curiae urges this Court to grant the petitions

for writs of certiorari.

Respectfully submitted,

Rosert B. Hansen,

Attorney General,

WILIA C. QUIGLEY,

Assistant Attorney General.

The State of Utah

Capitol Building

Room 236

Salt Lake City, Utah 84114

January 1977